Citation Nr: 21076354 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-40 443 DATE: December 23, 2021 ORDER The appeal seeking service connection for a right great toe ingrown nail is dismissed. The request to reopen a previously denied claim for right second and great toe trauma is dismissed. The request to reopen a previously denied claim for a right toenail fungal infection is dismissed. The request to reopen a previously denied claim for service connection for a left great toe ingrown nail is dismissed. Service connection for hypertension is denied. Service connection for a left Achilles injury is denied. The request to reopen a previously denied claim for service connection for urticaria is denied. The request to reopen a previously denied claim for service connection for alopecia is denied. An effective date of November 8, 2013, for the grant of a 10 percent rating for right ankle calcification and heel spur is granted. An effective date earlier than March 24, 2014, for the grant of a 30 percent rating for residuals of a pituitary tumor resection is denied. A rating higher than 30 percent for residuals of a pituitary tumor resection is denied. FINDINGS OF FACT 1. The Veteran withdrew the appeals for service connection for a right great toe ingrown nail; reopening a previously denied claim for right second and great toe trauma; reopening a previously denied claim for a right toenail fungal infection; and reopening a previously denied claim for service connection for a left great toe ingrown nail on the record at his August 2021 Board hearing. 2. The Veteran's hypertension is not secondary to service-connected pituitary tumor resection residuals and is not otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had a left Achilles disability at any time during or approximate to the pendency of the claim. 4. The Veteran was denied service connection for urticaria in a February 2004 rating decision, and evidence received since then does not raise a reasonable possibility of substantiating the claim. 5. The Veteran was denied service connection for alopecia in a March 2012 rating decision, and evidence received since then does not raise a reasonable possibility of substantiating the claim. 6. The Veteran had documented tenderness and swelling of the right Achilles tendon as of November 8, 2013. 7. There is no factually ascertainable increase in the Veteran's residuals of a pituitary tumor resection prior to March 24, 2014. 8. The Veteran's pituitary tumor resection is not manifested by hypertension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking service connection for a right great toe ingrown nail; the request to reopen a previously denied claim for right second and great toe trauma; of the request to reopen a previously denied claim for a right toenail fungal infection; and the request to reopen a previously denied claim for service connection for a left great toe ingrown nail are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for hypertension due to service or service-connected pituitary tumor resection residuals are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a left Achilles disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for reopening a previously denied claim for service connection for urticaria are not met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 5. The criteria for reopening a previously denied claim for service connection for alopecia are not met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156, 3.160(d), 20.200, 20.302, 20.1103. 6. The criteria for an effective date of November 8, 2013, for the grant of a 10 percent rating for right ankle calcification and heel spur are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for an effective date earlier than March 24, 2014, for the grant of a 30 percent rating for residuals of a pituitary tumor resection are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 8. The criteria for a rating higher than 30 percent for residuals of a pituitary tumor resection are not met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.119, Diagnostic Code 7908. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from December 1976 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board hearing in August 2021. In June 2019, the Veteran submitted correspondence indicating his intent to withdraw all of the claims on appeal. However, that withdrawal was never acted on by VA. At his Board hearing, he indicated his intent to withdraw some of the claims, while seeking adjudication of others. The Board will proceed based on the Veteran's intentions as stated at the hearing. Withdrawn Claims Service connection for a right great toe ingrown nail Request to reopen a previously denied claim for right second and great toe trauma Request to reopen a previously denied claim for a right toenail fungal infection Request to reopen a previously denied claim for service connection for a left great toe ingrown nail The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. In the present case, the appellant withdrew the above-listed issues during his August 2021 Board hearing. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. Service Connection Hypertension The Veteran contends that he has hypertension secondary to his service-connected pituitary tumor resection residuals. Notably, those residuals are rated under 38 C.F.R. § 4.119, Diagnostic Code 7908, and hypertension is included in the listed criteria. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Board concludes that, while the Veteran has a current hypertension disability, the preponderance of the evidence is against finding that it is proximately due to or the result of, or aggravated beyond its natural progression by service-connected residuals of a pituitary tumor resection. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In a March 2017 opinion, a VA examiner explained that the Veteran had acromegaly associated with his pituitary tumor resection residuals. Acromegaly is the syndrome caused by an excess of growth hormone produced by pituitary gland, and hypertension may indeed be one of the many manifestations of acromegaly. The examiner explained that it is important to distinguish between the untreated and post-treatment periods of acromegaly. When untreated, the full range of effects, including high blood pressure, may be present. Following treatment, growth hormone levels return to normal and any metabolic effects, including hypertension, resolve or improve. In the absence of excess growth hormone, any hypertension would be due to other factors. Per the medical literature, the goal of acromegaly treatment is to lower serum GH levels to <1.0 ng/mL and serum IGF-1 to levels within reference range for the patient's age and gender. A review of Veteran's lab work shows that his GH and IGF-1 levels have never been elevated following removal of his pituitary adenoma. This is consistent with the expected result of successful resection. The most recent GH in July 2016 was .3 ng/mL. IGF-1 was within the normal range in February 2016. Therefore, there is no indication that the Veteran had any recurrence of his pituitary adenoma. Any hypertension diagnosed following his surgery would not be related to the adenoma or surgery. The examiner also noted that the Veteran's service treatment records do not show any evidence of elevated blood pressures or hypertension at the time he was diagnosed with acromegaly in service. Therefore, it was less likely than not that hypertension was caused or aggravated by the service-connected pituitary tumor residuals. There is no competent medical evidence to refute this conclusion or otherwise link hypertension to the service-connected pituitary disability. While the Veteran and his spouse believe such a connection exists, they have not shown the necessary medical knowledge or expertise to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As a result, service connection is not warranted. Left Achilles injury The Veteran contends that he incurred a left Achilles injury during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that the Veteran does not have a current diagnosis of a left Achilles disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A September 2011 VA examiner noted that the Veteran's Achilles tendon was mid-line in the foot. There was no evidence of painful motion, edema, weakness, instability, or other forms of impairment. There was no pain during range of motion testing for the ankle. Subsequent treatment records do not show any findings related to a left Achilles disability. In his August 2021 hearing, the Veteran testified that he injured his Achilles tendon during service. Notably, service and post-service treatment records show several entries related to a right Achilles tendon injury for which the Veteran is already service-connected. The only reference in the service treatment records to the left Achilles is a February 1995 medical history report. However, that entry lists the date of injury as June 1988, when the Veteran was seen for his right Achilles tendon. The Board reasonably concludes that this entry erred by listing the left side rather than the right. In absence of a current disability, service connection is not warranted. Previously Denied Claims To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Urticaria The Veteran was previously denied service connection for urticaria in a February 2004 rating decision. The basis of that denial was that evidence of a skin disease was not shown in service. The Veteran did not appeal that decision and it became final. Since that rating decision, additional evidence has been received, including outpatient treatment records, VA examination reports, and the Veteran's lay statements and testimony. However, this evidence does establish a relevant in-service disease or injury that might raise the possibility of substantiating a claim for service connection for urticaria. Indeed, while the prior rating decision acknowledged findings of urticaria from June 2001, the additional medical evidence received since that rating decision does not show that a current urticaria diagnosis is present. Therefore, while "new" evidence was received, it is not "material" because it does not relate to a previously unestablished element of the claim and does not raise a reasonable possibility of substantiating the claim. Notably, the Veteran has since been service-connected for folliculitis associated with his pituitary tumor resection, and this diagnosis is discussed in the more recent medical evidence. At his Board hearing, the Veteran acknowledged that what he claimed as urticaria may be the same condition as his folliculitis. Given these circumstances and the evidence, reopening the claim for service connection for urticaria is not warranted. Alopecia The Veteran was previously denied service connection for urticaria in a March 2012 rating decision. The basis of that denial was that the evidence did not establish a current disability. The Veteran did not appeal that decision and it became final. Since that rating decision, additional evidence has been received, including outpatient treatment records, VA examination reports, and the Veteran's lay statements and testimony. However, this evidence does establish a current disability with respect to the alopecia claim. At his August 2021 hearing, the Veteran reported getting bald spots during service, and alopecia was noted in his service treatment records. However, prior to the March 2012 rating decision, a September 2011 VA examination found that the Veteran had male pattern baldness, which was not a medical condition, and no alopecia. The additional records received since then do not reference any current hair loss, let alone alopecia. Therefore, while "new" evidence was received, it is not "material" because it does not relate to a previously unestablished element of the claim and does not raise a reasonable possibility of substantiating the claim. As a result, reopening of the claim is not appropriate. Earlier Effective Dates The effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). For both the Veteran's right ankle disability and his pituitary tumor resection residuals, the Veteran had a disability rating in effective prior to March 24, 2014. However, the January 2015 rating decision styled the grant of higher ratings as new grants of service connection. For example, the decision stated, "Service connection for right ankle calcification of achilles tendonitis with retrocalcaneal heel spur (previously rating as right achilles tendonitis) is granted with an evaluation of 10 percent effective March 24, 2014." Because the Veteran was already service-connected for both disabilities prior to March 24, 2014, the Board will adjudicate both claims as requests for earlier effective dates for the grant of higher ratings. For the disabilities in question, the Veteran filed the underlying claim for an increased rating on March 24, 2014. The higher ratings were awarded from that date. Therefore, the only pertinent question is whether it is factually ascertainable that either disability met the criteria for the higher rating within one year of March 24, 2014. Right ankle calcification and heel spur VA treatment records from November 8, 2013, show the Veteran had tenderness and swelling in the area of his right Achilles tendon. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The Veteran's disability is rated by analogy to 38 C.F.R. § 4.71, Diagnostic Code 5271, which provides a minimum 10 percent rating. Therefore, the criteria for a 10 percent rating were met on November 8, 2013, within one year of the Veteran's March 2014 claim. There is no evidence to show such an increase between March 24, 2013, and November 8, 2013, and therefore November 8, 2013, is the appropriate effective date. Residuals of a pituitary tumor resection The Veteran's disability is rated under 4.119, Diagnostic Code 7908, which addresses acromegaly. The 30 percent rating he was awarded under that code effective March 24, 2014, contemplates enlargement of the acral parts or overgrowth of the long bones. A review of the available evidence for the one year period prior to March 24, 2014, does not show any specific findings regarding those rating criteria, or any other findings that could reasonably show that the criteria for the 30 percent rating had been met. Because it is not factually ascertainable that these criteria were met during that time, an effective date earlier than March 24, 2014, is not warranted. At the August 2021 hearing, the Veteran and his spouse raised the possibility of an effective date dating back to his separation from service. From July 1, 1996, to March 23, 2014, the Veteran was assigned a 0 percent rating. However, as discussed above, the primary determination for establishing an effective date is the date a claim was filed. A review of the record does not show that the Veteran filed a claim for an increased rating for his pituitary tumor resection after service connection was established and prior to March 24, 2014. Regardless of what the medical evidence may show during those years, VA's regulations do not allow the Board to assign an earlier effective date in this case. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Residuals of a pituitary tumor resection The Veteran's pituitary tumor residuals are rated under 38 C.F.R. § 4.119, Diagnostic Code 7908. He is currently assigned a 30 percent rating. A higher 60 percent rating is assigned when the condition is manifested by arthropathy, glucose intolerance, and hypertension. The criteria under Diagnostic Code 7908 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). As discussed above, the Veteran's hypertension is not related to his pituitary tumor resection residuals. Therefore, the criteria for the higher 60 percent rating are not met. Notably, while the 60 percent rating contemplates arthropathy, the Veteran is already service-connected for bilateral knee arthritis associated with his pituitary residuals. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.